State of New York
Department of State
Committee on Open Government

The staff of the Committee on Open Government is authorized to issue
advisory opinions. The
ensuing staff advisory opinion is based solely upon the information
presented in your
correspondence.

Dear

I have received your letter of March 1 in which you sought assistance
in obtaining records
relating to the Slate Valley Museum and the Slate Valley Museum Foundation.
You indicated that
the Museum "is owned by the Village of Granville and the Foundation
was set up by the Village 'to
support' the Museum."
Based on the assumption that your statement is accurate, I offer the following
comments.

First, the Freedom of Information Law is applicable to agency records,
and §86(3) defines
the term "agency" to mean:

"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation,
council, office or other governmental entity performing a
governmental or proprietary function for the state or any one or more
municipalities thereof, except the judiciary or the state legislature."

While the status of the Foundation as an "agency" has not
been determined judicially, it is clear that
the Village is an "agency" required to comply with the Freedom
of Information Law.

Pertinent with respect to rights of access is §86(4), which defines
the term "record"
expansively to include:

Based on the foregoing, the Court of Appeals, the state's highest
court, found that documents
maintained by a not-for-profit corporation providing services for a
branch of the State University
were kept on behalf of the University and constituted agency "records" falling
within the coverage
of the Freedom of Information Law. I point out that the Court rejected "SUNY's
contention that
disclosure turns on whether the requested information is in the physical
possession of the agency",
for such a view "ignores the plain language of the FOIL definition
of 'records' as information kept
or held 'by, with or for an agency'" [ see Encore College Bookstores,
Inc. v. Auxillary Services
Corporation of the State University of New York at Farmingdale, 87
NY 2d 410, 417 (1995)].
Therefore, if a document is produced for an agency, it constitutes
an agency record, even if it is not
in the physical possession of the agency. In the context of the issue
that you raised, irrespective of
whether the Foundation is an "agency", its records appear
to be maintained for the Village. If that
is so, the records would, based on Encore, constitute agency records
subject to the Freedom of
Information Law.

Second, while profit or not-for-profit corporations would not in
most instances be subject
to the Freedom of Information Law because they are not governmental
entities, there are several
judicial determinations in which it was held that certain not-for-profit
corporations, due to their
functions and the nature of their relationship with government, are "agencies" that
fall within the
scope of the Freedom of Information Law.

In the first decision in which it was held that a not-for-profit
corporation may be an "agency"
required to comply with the Freedom of Information Law, [Westchester-Rockland
Newspapers v.
Kimball [50 NY2d 575 (1980)], a case involving access to records
relating to a lottery conducted
by a volunteer fire company, the Court of Appeals found that volunteer
fire companies, despite their
status as not-for-profit corporations, are "agencies" subject
to the Freedom of Information Law. In
so holding, the State's highest court stated that:

"We begin by rejecting respondent's contention that, in applying
the
Freedom of Information Law, a distinction is to be made between a
volunteer organization on which a local government relies for
performance of an essential public service, as is true of the fire
department here, and on the other hand, an organic arm of
government, when that is the channel through which such services
are delivered. Key is the Legislature's own unmistakably broad
declaration that, '[a]s state and local government services increase
and public problems become more sophisticated and complex and
therefore harder to solve, and with the resultant increase in revenues
and expenditures, it is incumbent upon the state and its localities to
extend public accountability wherever and whenever feasible'
(emphasis added; Public Officers Law, §84).

For the successful implementation of the policies motivating the
enactment of the Freedom of Information Law centers on goals as
broad as the achievement of a more informed electorate and a more
responsible and responsive officialdom. By their very nature such
objections cannot hope to be attained unless the measures taken to
bring them about permeate the body politic to a point where they
become the rule rather than the exception. The phrase 'public
accountability wherever and whenever feasible' therefore merely
punctuates with explicitness what in any event is implicit" (id. at
579].

In the same decision, the Court noted that:

"...not only are the expanding boundaries of governmental activity
increasingly difficult to draw, but in perception, if not in actuality,
there is bound to be considerable crossover between governmental
and nongovernmental activities, especially where both are carried on
by the same person or persons" (id., 581).

In Buffalo News v. Buffalo Enterprise Development Corporation [84
NY 2d 488 (1994)],
the Court of Appeals found again that a not-for-profit corporation,
based on its relationship to an
agency, was itself an agency subject to the Freedom of Information
Law. The decision indicates
that:

"The BEDC principally pegs its argument for nondisclosure on
the
feature that an entity qualifies as an 'agency' only if there is
substantial governmental control over its daily operations (see, e.g.,
Irwin Mem. Blood Bank of San Francisco Med. Socy. v American
Natl. Red Cross, 640 F2d 1051; Rocap v Indiek, 519 F2d 174). The
Buffalo News counters by arguing that the City of Buffalo is
'inextricably involved in the core planning and execution of the
agency's [BEDC] program'; thus, the BEDC is a 'governmental entity'
performing a governmental function for the City of Buffalo, within
the statutory definition.

"The BEDC's purpose is undeniably governmental. It was created
exclusively by and for the City of Buffalo...In sum, the constricted
construction urged by appellant BEDC would contradict the
expansive public policy dictates underpinning FOIL. Thus, we reject
appellant's arguments," (id., 492-493).

Perhaps most analogous to the situation described is a decision in
which it was held that a
community college foundation associated with an institution of the
City University of New York
was subject to the Freedom of Information Law, despite its status as
a not-for-profit corporation.
In so holding, it was stated that:

"At issue is whether the Kingsborough Community College
Foundation, Inc (hereinafter 'Foundation') comes within the
definition of an 'agency' as defined in Public Officers Law §86(3)
and whether the Foundation's fund collection and expenditure
records are 'records' within the meaning and contemplation of Public
Officers Law §86(4).

"The Foundation is a not-for-profit corporation that was formed
to
'promote interest in and support of the college in the local community
and among students, faculty and alumni of the college'
(Respondent's Verified Answer at paragraph 17). These purposes are
further amplified in the statement of 'principal objectives' in the
Foundation's Certificate of Incorporation:

'1 To promote and encourage among members of the
local and college community and alumni or interest in
and support of Kingsborough Community College
and the various educational, cultural and social
activities conducted by it and serve as a medium for
encouraging fuller understanding of the aims and
functions of the college'.

"Furthermore, the Board of Trustees of the City University,
by resolution,
authorized the formation of the Foundation. The activities of the
Foundation, enumerated in the Verified Petition at paragraph 11, amply
demonstrate that the Foundation is providing services that are exclusively
in
the college's interest and essentially in the name of the College. Indeed,
the
Foundation would not exist but for its relationship with the College"
(Eisenberg v. Goldstein, Supreme Court, Kings County, February 26, 1988).

As in the case of the foundation in Eisenberg, that entity, and,
in this instance, the
Foundation, would not exist but for its relationship with the Village.
Due to the similarity between
the situation you have described and that presented in Eisenberg, it
appears to be subject to the
Freedom of Information Law.

Third, the Open Meetings Law is applicable to meetings of public
bodies, and §102(2) of
that statute defines the phrase "public body" to mean:

"any entity, for which a quorum is required in order to conduct
public business and which consists of two or more members,
performing a governmental function for the state or for an agency or
department thereof, or for a public corporation as defined in section
sixty-six of the general construction law, or committee or
subcommittee or other similar body of such public body."

By breaking the definition into components, it appears that each
condition necessary to a
finding that the Board of the Foundation is a "public body" may
be met. It is an entity for which
a quorum is required pursuant to the provisions of the Not-for-Profit
Corporation Law. It consists
of more than two members. In view of the degree of governmental control
exercised by and its nexus
with the Village, it appears to conduct public business and perform
a governmental function for a
governmental entity.

In Smith v. City University of New York [92 NY2d 707 (1999)], the
Court of Appeals held
that a student government association carried out various governmental
functions on behalf of
CUNY and, therefore, that its governing body is subject to the Open
Meetings Law. In its
consideration of the matter, the Court found that:

"in determining whether the entity is a public body, various
criteria
or benchmarks are material. They include the authority under which
the entity is created, the power distribution or sharing model under
which it exists, the nature of its role, the power it possesses and
under which it purports to act, and a realistic appraisal of its
functional relationship to affected parties and constituencies" (id.,
713).

Lastly, with respect to minutes of meetings, I direct your attention
to §106 of the Open
Meetings Law which provides that:

"1. Minutes shall be taken at all open meetings of a public
body
which shall consist of a record or summary of all motions, proposals,
resolutions and any other matter formally voted upon and the vote
thereon.

2. Minutes shall be taken at executive sessions of any action that
is
taken by formal vote which shall consist of a record or summary of
the final determination of such action, and the date and vote thereon;
provided, however, that such summary need not include any matter
which is not required to be made public by the freedom of
information law as added by article six of this chapter.

3. Minutes of meetings of all public bodies shall be available to
the
public in accordance with the provisions of the freedom of
information law within two weeks from the date of such meetings
except that minutes taken pursuant to subdivision two hereof shall be
available to the public within one week from the date of the executive
session."

In view of the foregoing, as a general rule, a public body may take
action during a properly
convened executive session [see Open Meetings Law, §105(1)]. If action
is taken during an
executive session, minutes reflective of the action, the date and the
vote must be recorded in minutes
pursuant to §106(2) of the Law. If no action is taken, there is no
requirement that minutes of the
executive session be prepared.

It is noted that minutes of executive sessions need not include information
that may be
withheld under the Freedom of Information Law. From my perspective,
even when a public body
makes a final determination during an executive session, that determination
will, in most instances,
be public. For example, although a discussion to hire or fire a particular
employee could clearly be
discussed during an executive session [see Open Meetings Law, §105(1)(f),
a determination to hire
or fire that person would be recorded in minutes and would be available
to the public under the
Freedom of Information Law. On other hand, if a public body votes to
initiate a disciplinary
proceeding against a public employee, minutes reflective of its action
would not have include
reference to or identify the person, for the Freedom of Information
Law authorizes an agency to
withhold records to the extent that disclosure would result in an unwarranted
personal privacy [see
Freedom of Information Law, §87(2)(b)].

Lastly, I point out that a public body must approve a motion, in
public, before entry into an
executive session, and that the motion must include reference to the "general
area or areas of the
subject or subjects to be considered..." [Open Meetings Law, §105(1)].
Since a motion to enter into
executive session must be made during an open meeting, and since §106(1)
requires that minutes
include references to all motions, the minutes of an open meeting must
always include an indication
that an executive session was held, as well as the reason for the executive
session.